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Defendant Entitled to Suppression Hearing Where People Provided No Information About How Defendant Came to the Attention of Law Enforcement Personnel

The First Department determined the defendant’s motion papers, although conclusory, were sufficient to warrant a hearing on whether defendant’s statements should be suppressed.  The People had provided no information about how the defendant came to the attention of law enforcement:

Although the People provided defendant with extensive information about the facts of the crime and the proof to be offered at trial, they provided no information whatsoever, at any stage of the proceedings, about how defendant came to be a suspect, and the basis for her arrest, made hours after the crime at a different location. The People never explained, even by implication, whether defendant met a description, was named by a witness familiar with her, or was connected to the crime in some other way. While the People disclosed defendant’s detailed confession, it did not shed any light on how she came to be arrested … .

Accordingly, given defendant’s complete lack of relevant information, that portion of her motion papers alleging a “lack of probable cause to arrest the defendant based on the unreliability of the information provided to the police and/or the insufficiency of the description,” while conclusory, was sufficient to state a basis for suppression and raise a factual issue requiring a hearing … . People v Wynn, 2014 NY Slip Op 03352, 1st Dept 5-8-14

 

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Judge’s Failure to Apply the “Prejudice versus Probative” Balancing Test to Evidence of Uncharged Bad Acts and Crimes, Combined with the Judge’s Failure to Give the Jury Limiting Instructions About How Such Evidence is to Be Considered by Them, Required Reversal of Defendant’s Conviction

The Third Department reversed defendant’s conviction because the judge never ruled on the admissibility of uncharged prior bad acts and crimes by applying the “prejudicial effect versus probative value” Molineux test, and the judge never gave limiting instructions to the jury about the limited applicability of such evidence.  The charged offense was assault by administering alcohol to the victim (defendant’s wife) without her consent.  The prior bad acts and crimes which were entered into evidence included nonconsensual sex, withholding medication and domestic violence:

To be sure, “[p]rior bad acts in domestic violence situations are more likely to be considered relevant and probative evidence because the aggression and bad acts are focused on one particular person, demonstrating the defendant’s intent, motive, identity and absence of mistake” … and, further, may be “relevant to provide background information concerning the context and history of [the] defendant’s relationship with the victim” … . That said, even assuming that all of the uncharged crimes/prior bad acts at issue here, which, as noted previously, included allegations of nonconsensual sex, domestic violence, bullying and the withholding of certain medications from the victim, fell within one or more of the recognized Molineux exceptions … and indeed constituted relevant and probative evidence, the record fails to reflect that County Court balanced the probative value of such evidence against its prejudicial effect. More to the point, even further assuming that our review of the record disclosed evidence of County Court’s implicit finding in this regard …, the record nonetheless reveals that, despite an appropriate request by defense counsel during the course of the charge conference, no appropriate limiting instructions were provided to the jury … . The absence of such instructions clearly impacted the jury’s deliberations — as evidenced by the jury’s inquiry as to whether the coercion charge “encompass[ed] just the use of alcohol or . . . extend[ed] to unwilling sex. People v Elmy, 2014 NY Slip Op 03300, 3rd Dept 5-8-14

 

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Evidence Seized In Violation of Probationer’s Constitutional Rights Should Not Have Been Used as the Basis for a Probation Revocation

The Fourth Department determined evidence which was suppressed because it was unconstitutionally seized could not be used to support a revocation of probation, noting that a probationer loses some privacy and Fourth Amendment rights, but not all of both:

The Court of Appeals has “recognized . . . that a probationer loses some privacy expectations and some part of the protections of the Fourth Amendment, but not all of both” …, and “that a person on parole, although legally in custody and subject to supervision, is nevertheless constitutionally entitled to protection against unreasonable searches and seizures. A person on probation, subject to similar restraints (see CPL 410.50, subds. 1, 2)[,] should be similarly protected” … . Furthermore, with respect to evidence that was illegally seized from a person under a revocable disposition, “the Court of Appeals has applied the New York constitution to suppress such evidence at a parole revocation hearing . . . , and it would seem to follow a fortiori that such evidence would not be admissible at a probation violation hearing, which is even closer to a criminal action than a parole violation hearing” … . Here, the court concluded that the stop and search of defendant and his home were violative of defendant’s rights under the Constitutions of New York and the United States. Consequently, the court erred in relying upon the evidence seized as a result of those improper searches to conclude that defendant violated a condition of his probation… . People v Robinson, 2015 NY Slip Op 03967, 4th Dept 5-8-15

 

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Police Officer’s Draping Defendant’s Striped Shirt Over Defendant’s Chest During a Show-Up Identification Was Tantamount to Pointing Out the Defendant as the Perpetrator—Victim Had Told the Police the Perpetrator Was Wearing a Striped Shirt

The Second Department, over a dissent, determined the show-up identification procedure was unduly suggestive, requiring suppression of the identification testimony and a new trial. The defendant did not match the description of a person who had just robbed the victim at knife-point. However, the victim said the robber was wearing a brown and white striped shirt.  When a police officer spotted the defendant, he was shirtless but was carrying a red and white striped shirt. The victim was driven to where the defendant was being held, but she was only able to identify the defendant as the robber after an officer draped the striped shirt over his chest:

Here, the active police involvement in the identification process—the police officers’ draping of the shirt over the defendant’s chest immediately after the complainant had hesitated in identifying the shirtless defendant as the perpetrator and before she did identify him—renders this showup identification procedure unduly suggestive … . The actions taken by the police officers suggested to the complainant that the defendant was the perpetrator. Although the complainant saw the shirtless defendant, she did not identify him as the perpetrator until after the police held the striped shirt up against him. This action by the police is akin to the police having pointed out the defendant as the perpetrator … . People v James, 2015 NY Slip Op 03864, 2nd Dept 5-6-15

 

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Records of Pedigree Information Which Was Linked to the Defendant and Was Supplied by the Person Who Purchased a Prepaid Cell Phone Properly Admitted as Circumstantial Evidence Defendant Purchased the Phone

The First Department determined “[a]uthenticated records showing that the person who purchased a particular prepaid cell phone, which was linked to the crime, supplied pedigree information linked to defendant were properly admitted as circumstantial evidence of defendant’s identity as the purchaser of the phone. In the context of the case, the pedigree information did not constitute assertions of fact, but circumstantial evidence that the declarant was, in all likelihood, defendant … . Rather than being factual, the pedigree information was analogous to a fingerprint left on a document, tending to show the true identity of its author … . Although the purchaser of the phone was not under a business duty to provide the pedigree information, that requirement of the business records exception to the hearsay rule did not apply, because the initial declaration was independently admissible … . The possibility that the phone could have been purchased by an unknown person who had somehow acquired defendant’s pedigree information goes to weight, not admissibility.” People v Patterson, 2015 NY Slip Op 03788, 1st Dept 5-5-15

 

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Competency of Evidence Before Grand Jury Not Reviewable On Appeal Where Defendant Convicted Upon Legally Sufficient Trial Evidence

In response the defendant’s claim that a child witness was allowed to testify before the grand jury without determining her testimonial capacity, the Fourth Department noted that the competency of evidence before the grand jury is not reviewable on appeal where defendant was convicted upon legally sufficient trial evidence. People v Riley, 2014 NY Slip Op 03140, 4th Dept 5-2-14

 

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Professional Reliability Exception to the Hearsay Rule (Re: Experts) Explained/Appropriate Date to Commence Prejudgment Interest in Breach of Contract Action Explained

The Fourth Department explained when an expert can rely on hearsay and when prejudgment interest should commence in a breach of contract action:

We reject defendant’s further contention that there was no evidentiary foundation for the testimony of plaintiffs’ damages expert, a construction cost estimator. It is well settled that” [o]pinion evidence must be based on facts in the record or personally known to the witness’ ” … . It is also well settled, however, that an expert is permitted to offer opinion testimony based on facts not in evidence where the material is ” of a kind accepted in the profession as reliable in forming a professional opinion’ ” … . “The professional reliability exception to the hearsay rule enables an expert witness to provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession’ ” … . Here, the expert’s damages testimony was based, in part, on measurements contained in a report that was not admitted in evidence, but those measurements were not otherwise disputed or challenged by defendant. Moreover, the expert testified that the information on which he relied was of the type relied on in his profession.

We agree with defendant, however, that the court erred in awarding prejudgment interest from April 18, 1990. The jury did not specify a date on which plaintiffs’ cause of action for breach of contract accrued and where, as here, “the precise date from which to fix interest is ambiguous, the date of commencement of the . . . action’ is an appropriate date to choose” … . We therefore modify the judgment by vacating the amount of prejudgment interest awarded from April 18, 1990 and providing that prejudgment interest is to commence from April 18, 1996, the date on which the action was commenced, to May 2, 2012, the date of the judgment. Caleb v Stevenson Envtl Servs Inc, 2014 NY Slip Op 03057, 4th Dept 5-2-14

 

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Rape-Complainant’s Mental Health Records Raised a Brady, Not a Confrontation, Issue—Trial Judge Properly Ruled that Most of the Records Would Not Be Turned Over to the Defense Because There was No Reasonable Possibility Disclosure Would Have Led to Defendant’s Acquittal

The Court of Appeals, in a full-fledged opinion by Judge Smith, over a forceful dissent by Judge Rivera, determined the trial court had properly refused to turn over to the defense most of the complainant’s mental health records.  The 18-year-old complainant called 911 to report she had just been raped by the 40-year-old defendant.  The defendant claimed that they had consensual sex but that he struggled with the complainant after she started to run away with his pants and money. The case came down to the credibility of the defendant and the complainant.  The complainant suffered from “Bipolar, Tourettes, post-traumatic-stress disorder, [and] epilepsy.”  She had visualized the presence of dead people, had cut herself, had been violent, had attempted suicide and had made an allegation of sexual assault against her father which one record referred to as “unfounded.” She also suffered from attention deficit disorder and hypersexuality. The trial judge disclosed only a few of complainant’s mental health records.  The majority determined the mental health records raised a Brady issue, not a confrontation issue (as was argued by the defendant and the dissent):

While defendant presents the issue as one of interference with his rights of confrontation and cross-examination, we view this as essentially a Brady case (Brady v Maryland, 373 US 83 [1963]; see Pennsylvania v Ritchie, 480 US 39, 56 [1987] [evaluating under Brady the question of whether confidential investigative files concerning child abuse must be disclosed to a criminal defendant]). Under Brady, a defendant is entitled to the disclosure of evidence favorable to his case “where the evidence is material” (373 US at 87). In New York, the test of materiality where, as here, the defendant has made a specific request for the evidence in question is whether there is a “reasonable possibility” that the verdict would have been different if the evidence had been disclosed … .

This case differs from the typical Brady case in that it involves confidential mental health records, and the decision to deny disclosure was made not by a prosecutor, but by a judge after an in camera review of the records sought. In such a case, the trial court has a measure of discretion in deciding whether records otherwise entitled to confidentiality should be disclosed … .

In sum, the issue here is whether the trial court abused its discretion in finding defendant’s interest in obtaining the records to be outweighed by the complainant’s interest in confidentiality; and defendant’s interest could be outweighed only if there was no reasonable possibility that the withheld materials would lead to his acquittal. Having examined those materials, we conclude that the court did not abuse its discretion. People v McCray, 2014 NY Slip Op 02970, CtApp 5-1-14

 

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There Was Sufficient Evidence Defendant Was Responsible for a Witness’ Refusal to Testify to Allow the People to Present the Witness’ Grand Jury Testimony at Trial

In a full-fledged opinion by Judge Abdus-Salaam, with a concurring opinion, the Court of Appeals determined the trial court properly ruled a witness' grand jury testimony could be presented at trial because there was sufficient evidence the defendant was responsible for the witness' asserting her Fifth Amendment privilege against self-incrimination and refusing to testify:

Under the Sixth Amendment of the Federal Constitution and article one, section six of the State Constitution, a criminal defendant has the right to be confronted with the witnesses against him or her (see U.S. Const. Amend. VI; NY Const, art I, § 6…). The confrontation right is critical to the fairness of a trial because it “'ensur[es] the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact'” … . Given this important right, an unavailable witness's grand jury testimony, which by definition has not been subjected to confrontation, generally may not be admitted at trial on the People's direct case … . However, “where it has been shown that the defendant procured the witness's unavailability through violence, threats or chicanery,” the defendant “may not assert either the constitutional right of confrontation or the evidentiary rules against the admission of hearsay in order to prevent the admission of the witness's out-of-court declarations,” including the witness's grand jury testimony… .  People v Smart, 2014 NY Slip Op 02972, CtApp 5-1-14

 

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Issuance of a “No Knock” Warrant to Take a DNA Sample Was Not Justified—Sample Should Have Been Suppressed

The Third Department suppressed DNA evidence taken from the defendant pursuant to a “no knock” warrant and reversed defendant’s conviction. No exigent circumstances justified the “no knock” warrant which allowed the police to enter defendant’s home without notice and take the DNA sample:

The search warrant application to obtain DNA from defendant included the unsubstantiated and inaccurate allegations that the “search warrant cannot be executed between the hours of 6:00 A.M. and 9:00 P.M.,” “the property sought will be removed or destroyed if not seized forthwith,” and “[t]he property sought may be easily and quickly destroyed or disposed of.” There were no factual allegations reflecting exigent circumstances justifying the lack of any notice to defendant of the application to obtain a DNA sample from him. He could not destroy or dispose of his own DNA, and the People’s speculation in their brief that he might have fled was not alleged or supported by facts in the application.

The ensuing search warrant inconsistently stated both that it was to be executed between 6:00 a.m. and 9:00 p.m. and that it could be executed at any time day or night; and it further authorized police to enter the premises where defendant resided without giving notice of their authority or purpose. Under the authority of the warrant, police arrived unannounced at the place where defendant lived demanding his DNA. The total absence of notice to defendant of the search warrant application, which had obvious defects regarding the manner purportedly necessary to obtain defendant’s DNA, violated his constitutional rights and the DNA obtained in such search must be suppressed and the judgment reversed… . People v Walker, 2014 NY Slip Op 02975, 3rd Dept 5-1-14

 

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